Court of appeal rules on Fairford Defence
MENTION OF IRAQ WAR
At the end of June, the Court of Appeal heard pre-trial submissions
from both Crown and defence lawyers in the cases of the five peace
activists who undertook to damage US-owned military hardware at the air
base at Fairford, Gloucestershire, in the weeks before the Iraq war.
Paul Milling and Margaret Jones disabled support vehicles used to supply
bombs and fuel to B-52 bombers. In two further separate incidents,
Philip Pritchard and Toby Olditch, and Josh Richards, were arrested
while on their way to disable a plane.
The main point at issue: the defendants’ right to argue that they
carried out their actions to resist an illegal war.
This morning the Appeal Court judges hearing the appeal - Lord Justice
Latham, Mr. Justice Gibbs and Judge Richard Brown - ruled it is “not
necessary” to consider the legality of the war in Iraq, for the accused
to have a defence in law. There is no need, the judges say, even to
debate whether an English court has the right to rule on government
policy in the case. The judges find no “established rule” which defines
the international crime of aggression by a government as being also a
crime in English law. So the accused are unable to claim “preventing the
crime of aggression” as the basis of their defence.
At trial, the defendants will still be able to rely on the defence of
“lawful excuse.” They will be able to argue from the Criminal Damage Act
of 1971 that, in damaging support vehicles for B-52 bombers, or in
breaking into Fairford air base to try and disable a plane, they were
defending a “property, right or interest,” that they honestly believed
was in need of protection.
Since this defence under the Criminal Damage Act does not specify
whether the action a defendant seeks to prevent must something illegal,
the Appeal Court judges again found it possible to avoid considering the
possible unlawfulness of the Iraq war.
Three weeks ago, at the start of the hearing that led to today’s ruling,
a four-page witness statement was submitted to the Appeal Court by Sir
Michael Jay, head of the Diplomatic Service. In the statement, Sir
Michael said he had been instructed by the Foreign Secretary, Jack
Straw, to warn that for a UK court to express any opinion on the
legality of the Iraq war would have negative effects on UK foreign
relations. Any such ruling would, Sir Michael wrote, “provide
encouragement” to terrorists, “weaken the Government’s hand in its
negotiations with other states,” and “tend to undermine the new Iraqi
In view of this warning from the highest levels of government, today’s
Court of Appeal judgement comes as no surprise. Defendants will now
discuss with their lawyers whether they have grounds to for a further
appeal, to the House of Lords.
In the Court of Appeal hearing, Paul Milling and Margaret Jones were
represented by James Lewis QC, and Josh Richards by Keir Starmer QC.
Professor Vaughan Lowe represented Philip Pritchard and Toby Olditch.